Make sure you also read David Lawrence Dewey's latest column, click hereNOTICE: IF YOU LINK TO THIS COLUMN, YOU MUST USE THIS URL: http://www.dldewey.com/fleming.htmYou may post a comment about the article and the URL linkin any message board or blog, but not the entire articleThe article is copyrighted by Carol Guilford.Note from David Lawrence Dewey:The following article written by free lance writer Carol Guilford is appearing on my website to bring attention to this matter. A press release was issued through PRWEB regarding this article.Carol Guilford has given permission to reprint the article on my website.

Charles Fleming, 37, played basketball every Sunday. On a hot summer day in June, 2000, Charles came home and drank a bottle of Gatorade that he and his wife Diane had just bought to mix with creatine, a food supplement.Charles wanted to try creatine because it promised muscle mass.

This particular Sunday was the first time Charles ever drank Gatorade; the Flemings bought it particularly to mix with the creatine.

After drinking the Gatorade with the supplement, Fleming became ill and went to bed early. The next morning Fleming went to work but, feeling ill, went home. Fleming's condition deteriorated rapidly and he was taken to the hospital. During treatment, Fleming was given Ativan because he was combative and confused; from there, he slipped into a coma and died. The autopsy showed Charles Fleming died from 'acute methanol poisoning'.

In February, 2002, Case No. CR01F01484-01, Commonwealth Of Virginia v. Diane Fleming, Diane Fleming was tried and convicted to sentences of 30 years for murder and twenty years for adulteration, allegedly ‘spiking’ her husband’s Gatorade with methanol, a poisonous alcohol, from a bottle of windshield washer fluid. Diane has been incarcerated for almost 4 years as prisoner #311655 in the Troy, VA. (Fluvanna) Department of Corrections.

Diane Fleming has given permission to this writer to write about the following latest endeavors to free her.
In June 2005, a writ of habeas corpus was prepared by Petitioner Diane Fleming’s pro-bono attorney, Mason Lee Byrd, of Richmond, VA. A writ of ‘habeas corpus’ is a judicial mandate ordering that an inmate be brought to court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.
In the habeas, Byrd presents 20 claims of "ineffective counsel" and two claims pertaining to "prosecutorial misconduct."

Byrd is remarkable in his findings, an incisive quest for the truth to prove Diane Fleming’s innocence. Due to personal matters, Mr. Byrd cannot continue representing Diane; however he petitioned the court to appoint David B. Hargett as Diane’s new counsel and the court agreed. Mr. Hargett is a prominent Richmond, Virginia attorney who has freed many people wrongly convicted of crimes.

The main issues in the filed habeas are claims (1-22) that include, who mixed the Gatorade with the creatine, how the methanol got into the Gatorade, the toxicology report that found no evidence the methanol that allegedly killed Charles Fleming was the actual cause of Charles Fleming’s death or connected to the windshield washer fluid found in the Fleming’s garage, Diane’s son, Chuckie who was accused by her own defense counsel of his stepfather’s murder, the date of a search for ‘methanol’ on a computer Diane and her son, Chuckie used, Diane’s demeanor on the witness stand and the legality of presenting evidence that Diane Fleming passed a polygraph test.

Diane’s new legal counsel David Hargett recently petitioned the court for a motion hearing, set for January 6, 2006.

The hearing will be held in Superior Court in Chesterfield, VA. A motion hearing is a legal request for an ‘evidentiary hearing.’ At the evidentiary hearing, the points of the writ of habeas corpus will be argued by Hargett, in front of Judge Cleo Powell who presided over Diane’s murder trial. Judge Powell, upon hearing the evidence has the power to free Petitioner Diane or grant her a new trial.

The following are the details from the trial of Diane Fleming and from the habeas corpus writ filed by Petitioner Diane Fleming who was convicted to 30 years for murder and 20 years for adulteration (to be served concurrently) for allegedly ‘spiking’ her husband’s (Charles Fleming) Gatorade with methanol (wood alcohol) a poison.

First and foremost, the Commonwealth of Virginia misrepresented the fact that there was an eyewitness to petitioner "mixing"something in the Gatorade outside the presence of Fleming. Chuckie Fleming, Diane’s son, swears in his affidavit : "I never testified at trial that I saw my mother, Diane Fleming, 'mixing' the contents of any Gatorade bottles. In fact, I do not recall seeing my mother ever touching the Gatorade bottles."

From the trial transcript, page 37, lines 6-8, Prosecutor William Davenport’s opening statement is as follows:
"About 9:00 or 9:30 that evening, Chuckie came back and found his mother in the kitchen mixing Gatorade and creatine. And she told him, These are Chuck’s don’t mess with them, and put those four bottles back into the refrigerator."
Writer’s note: Diane had a 7 year old daughter. Would Diane have left a poisoned Gatorade in the refrigerator where her daughter had easy access?

On page 87, lines 7-12, defense counsel, Craig S. Cooley, questions Chuckie. "Now, the bottles of Gatorade that you saw your mother mixing with creatine when you came home..." Which leads us to the Prosecutor’s closing on page 362, lines 1-15. "Chuckie said when he came home from work, his stepfather was in the bed and she was mixing creatine and Gatorade in the kitchen."

Here in Diane’s own words, is what happened on June 11, 2000. Diane passed a polygraph and the police report stated her story was consistent.

"Chuck and I mixed the creatine in the Gatorade 'TOGETHER.' I did the actual mixing while he was right there talking with me about it. "

From the habeas writ: "Clearly this prejudiced petitioner; even the Court of appeals, in its December, 31, 2002 decision relies on this misrepresentation of the facts. The circumstantial evidence in this case excluded all reasonable hypotheses of appellant’s innocence. Petitioner has suffered prejudice and there is a reasonable possibility that absent this continuing misstatement of the facts, that at least one of the juror’s would have had a reasonable doubt as to guilt or results on appeal would have been different.

The fact that the prosecutor misquoted the son to the jury is jury tampering, fraud, with no statute of limitations. Diane Fleming’s civil rights were violated. Litigants are to be given reasonable opportunity to remedy the defects in pleadings. Reynoldson v Shillinger 907F 2nd 124m 125 (10Cijr. 1990); See also Jaxon v Circ le K corpo. 773F 2nd 1138, 1140 (10th Cir. 11985) (1)

Here’s an interesting fact. The Krystal Kleer bottle of windshield washer bottle (in the garage) that Diane turned over to Detective Ruth Baker was ‘sealed.’ Diane says that "on July 20, 2000, the day a search warrant was executed, I questioned Detective Ruth Baker who collected this ‘evidence’ about her attached affidavit for probable cause that stated an opened bottle of windshield washer fluid had been found when I helped them locate a possible source of methanol on June 14, 2000. I questioned Detective Baker, asking her, ‘Remember, it was still sealed?’ Detective Baker answered, "I don’t remember."

How the methanol got into the Gatorade is still an unsolved mystery.

Did the Commonwealth lie and there is and was no methanol in the bottles?

Did the test the VA Department of Forensic Science show a ‘false/positive’?

Did Charles Fleming add, as he did to his other drinks, a packet of the artificial sweetener, Equal to the bottles of Gatorade? According to Diane, Fleming used aspartame (Equal) regularly to sweeten the liquids he drank. The aspartame molecule (Equal) has a 10% methanol content.

Was there a chemical reaction between the creatine, a muscle building supplement Diane and Charles Fleming mixed into the Gatorade and the Gatorade ingredients which then converted into methanol?

Did someone spike the Gatorade at Charles’ workplace where pure methanol was kept?

Author/journalist David Lawrence Dewey comments that when a subpoena is issued for the Gatorade bottles (still in evidence) and they are handed over for independent testing, an NFT1 test, by using the gas chromophotography method, will show whether the methanol was a commercial grade source used in Krystal Kleer windshield washer fluid.

Manufacturers use a ‘marker’, required by the EPA, to identify the product and to protect the patent formula. Dewey also states, "If the Commonwealth or trial counsel had performed an NFT1 test, it is plausible that Diane would not have even been indicted for murder."

In addition, toxicologist, Dr. Hildegard Staninger says a Raman Microscope test also can find the source of the methanol in the Gatorade and what type of methanol it is, commercial grade or food grade.

Dr. Joseph Saady, toxicologist for the state of VA. testified that the amount of methanol found in the Gatorade bottles was not enough to cause Fleming’s death. Approximately 75 to 120 ml of pure methanol is needed to cause death. Fleming would have potentially consumed 12 m. Saady’s math was wrong, it would have been 9.25 m.

The filed habeas writ for Diane states: to create the percentages of methanol that were discovered in the Gatorade, 84.4 ml of windshield washer would need to have been added. This is over four times the amount Counsel suggested to the jury in closing argument.

The numbers are important in the light of Dr. Woodrow Monte’s seminal work."Aspartame: Methanol and the Public Health".

Dr. Monte writes: "When diet sodas and soft drinks, sweetened with aspartame are used to replace fluid loss during exercise and physical exertion in hot climates, the intake of methanol can exceed 250 mg/day or 32 times the EPA’s recommended limit of consumption for this cumulative toxin."

Chuck played basketball on a hot day. Diane Fleming told this writer that she bought 3 cases of diet soda a week, most of it consumed by Chuck. Diane’s estimate of her husband Chuck’s aspartame intake was 6-8 diet Cokes a day and 2 diet Sprites per night with bourbon. He drank diet drinks at home and in his office, at Phillip Morris.

Diane's filed Habeas claims she, the Petitioner, was denied due process of law in that the Commonwealth failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963).

Upon information and belief, the Division of Forensic Science (DFS) performed toxicology tests on the windshield washer fluid and the substances in the Gatorade bottles in an effort to determine whether the blue dye in the windshield washer fluid was also in the Gatorade bottles. This would have indicated the source of the methanol. The police also discovered pure methanol at Fleming’s place of employment.

Employees of the DFS were able to identify the blue dye in the windshield washer fluid but were unable to locate the presence of blue dye in the substances contained in the Gatorade bottles.
Even simpler, if two ounces of Krystal Kleer windshield washer fluid is added to a lemon-lime Gatorade, the color turns green. Added to an orange Gatorade, Krystal Kleer turns the liquid brown. Lemon-lime and orange are the flavors Charles is thought to have drank. Counsel never explored the ‘color-change’ issue, although Detective Baker testified there was no ‘blue tint’ to the Gatorade

According to defense counsel’s own affidavit, he never received any discovery material from the Commonwealth indicating that the DFS had identified the blue dye in the windshield washer fluid but was unable to identify the presence of that blue dye in the in the contents of the Gatorade bottle. The law as determined in Brady v Maryland says that while the state does not have to disclose to the defense all the evidence they have against them they must disclose any exculpatory (clearing of guilt or blame) they come across.

What actually caused Charles Fleming’s death?

Petitioner, (Diane) was denied effective assistance of counsel in that trial counsel failed to object to the admission into evidence of the portion of the autopsy report indication Cause of death: "Acute methanol poisoning." Diane’s habeas claims that failing to explore a potential cause of death other than methanol poisoning in this circumstantial case was clearly not part of counsel’s trial strategy and indicates deficient performance.

According to Dr. Marcella Fierro, the chief medical examiner of VA., acute methanol poisoning was one of five "pathological diagnoses" for Fleming. Dr. Fierro stated in the autopsy report, " that acute methanol poisoning was the cause of death rather than one of the other four pathological diagnoses." (Exhibit 5 included in the autopsy report).

Dr. Fierro did not testify at trial, nor did any other pathologist. The Commonwealth of Virginia offered the autopsy report without redirecting and calling for Dr. Fierro’s opinion as to cause of death in court and the report in full was admitted without objection by defense counsel.

One of the five diagnoses in the autopsy was cardiomegaly. In and of itself, this pathological diagnosis can represent a cause of death. Trial counsel stated in an affidavit: "I never investigated whether any of the multiple ‘pathological diagnoses’ contained in the autopsy report could present a cause of death. I did not know why Dr. Fierro opined in the autopsy report that the cause of death was ‘acute methanol poisoning’ and not cardiomegaly 680 gm with biventricular hypertrophy etiology undetermined."

Dr Fierro’s recorded statement in the autopsy report was an expression of opinion and was inadmissible as such, Ward v. Commonwealth, 216, VA

Recognized by several researchers as clues to determine if sudden death is from the artificial sweetener, aspartame, is an autopsy showing cardiomegaly, pulmonary edema, metabolic acidosis, fatty liver, all conditions found in Charles Fleming’s body.

Diane’s Defense Counsel failed to present testimony that Chuck Fleming’s symptoms one month prior to his death were indicative of conditions other than methanol poisoning. Fleming had been experiencing shortness of breath and nausea which are symptoms associated with cardiomegaly or side effects of the medications Fleming took as indicated in the autopsy report. This lack of Fleming’s prior medical conditions led the jurors to believe that Fleming had been poisoned over time.

The jurors were half right. Chuck was poisoned over time, but not by Diane. The symptoms are those of cumulative methanol poisoning from the excessive amount of aspartame (Equal,NutraSweet) Chuck used. The FDA, in 1993, under the Freedom of Information Act, disclosed 92 symptoms caused by aspartame. The jury was looking for ‘whodunit’, not ‘whatdunit.’

Chuck had headaches, No. 1 on the FDA list. According to Diane, he was ‘moody.’ Change in mood quality or level is No. 3. Chuck had joint and bone pain for which he took Naproxin. Bone and joint pain is No. 31 on the FDA list. Other symptoms on the list Chuck exhibited were sleep problems, No. 13, memory loss, No. 6; gastrointestinal, No. 33 for which he took Prevacid (for heartburn) and shortness of breath , No. 21, for which he took Vancenase.
Death is No. 77 on the FDA list of aspartame symptoms.

A year after Diane Fleming was convicted and imprisoned, a loyal friend found information about the lethal effects of aspartame (Equal, NutraSweet) on the Internet.

The habeas writ for Diane Fleming states that because trial counsel didn’t investigate the other ‘causes ‘of death, it led to improper cross-examination of nephrologist, Dr. Christopher Acker. Acker was not qualified to give an opinion as to cause of death when other potentially lethal pathological diagnoses existed. Acker’s determination that the cause of death was methanol poisoning rather than a heart condition was outside the scope of his expertise.

Charles Tanner (Chuckie) is Diane’s son and was Chuck’s stepson; the two men had a volatile relationship. Trial counsel, in his affidavit states: "My primary strategy at trial was to create a reasonable doubt by raising a reasonable hypothesis of innocence. Specifically, my main focus was to create the reasonable hypothesis that Diane’s son, Charles L. Tanner, Jr. (hereinafter, 'Chuckie'), was the criminal agent responsible for the death of his stepfather, Charles Fleming. Additionally, we believed the Commonwealth could not establish any specific person as the criminal agent, nor establish the source of the methanol."

Lawyer Cooley spent most of the one-day trail (there are more than 50 references in the trial transcript) trying to prove Chuckie’s guilt.

The Commonwealth attempted to prove, as an alibi for Chuckie that he stayed at work all afternoon on Sunday, June 11, 2000, but defense never presented evidence regarding the distance between the store where Chuckie worked and the Fleming’s home.

What are the facts?

Chuckie’s time clock report indicates a 27 minute gap in his alibi. There is reasonable probability that this information would have swayed at least one of the jurors.

Larry Lynch, Juror on Diane’s trial, has stated in an affidavit; "It appeared that the prosecution was attempting to prove that Chuckie could not have been in two places at the same time. The defense never offered evidence as to how far the family’s house was from the Food Lion. I believe that this was a crucial piece of information that was not presented and would have affected my decision on guilt. Chuckie could have driven to the house during his break or could have left briefly while on the clock. Had I known, there is a reasonable probability that I would have had a reasonable doubt concerning Diane Fleming’s guilt."

Diane, the petitioner suffered prejudice.

Juror Marilee B. Soltis makes it clear that one of the factors in determining guilt was the appearance that the petitioner "was having her defense attorney place the blame on her son." Soltis further stated, "Had Diane Fleming testified that it was not her decision to try the case in this fashion, it would have affected my decision on guilt. It would have been extremely important for me to know that in a criminal case in Virginia, a defense attorney is only required to abide by the client’s wishes as to the plea to be entered, whether to waive a jury trial, and whether the client will testify."

Diane’s habeas claims Prosecutorial Misconduct in Diane’s trial because Chuckie believed he had immunity. According to counsel’s affidavit: "I never received any discovery material from the Commonwealth indicating that Chuckie had been granted any form of immunity from prosecution." Had counsel been alerted to this information, there is no doubt that he would have impeached Chuckie with it.

Defense counsel never interviewed Chuckie prior to trial regarding his testimony. If counsel had interviewed Chuckie or asked him on the stand at trial, he would have discovered that Chuckie believed he had immunity.
Juror Larry Lynch stated: "Had I known, there is a reasonable probability that I would have had a reasonable doubt concerning Diane Fleming’s guilt."

Charles Tanner (a.k.a. Chuckie) states in his affidavit: "I had a conversation with the prosecutors at the grand jury. When Davenport (Commonwealth’s attorney) started asking questions, I leaned over to my attorney and asked him whether I would have immunity. Davenport responded something to the effect that this would not be a problem. Warren Van Schuch (Senior Chief Deputy) then stated that the only thing that I would be prosecuted for would be perjury if I committed it. When I testified at trial, I was under the impression that I had immunity from prosecution."
Diane, the Petitioner suffered prejudice.

Defense counsel did not inform the jury that Diane was medicated during the trial, taking Zoloft and a pain killer, Talwin. Diane says, "I was not only on Zoloft at trial, but had been on it ever since about one and one half months after Chuck died. I was not medicated because I was on trial. I was depressed over my husband’s death."
Juror Teresa Reynolds was influenced by the petitioner’s "very cold"played off" the fact that petitioner "pointed the finger at her son," which were important factors in her guilty vote. This demonstrates without doubt prejudice.

According to juror Marilee B. Soltis, "One important factor that led to my decision in this case was Diane Fleming’s stoic appearance. She appeared emotionless during the guilt phase and sentencing."

Juror Larry E. Lynch, also has stated, "An important factor that led to my decision was Diane Fleming’s apparent lack of concern and lack of emotion during the guilt phase and sentencing. Had I known, there is a reasonable probability that I would have had a reasonable doubt concerning Diane Fleming’s guilt."

A date on one of the computers confiscated from the Fleming house was a reason the jurors found Diane guilty. Diane switched out the hard drive of the computer because she believed the police were targeting her son for the murder of her husband. Chuckie often went to ‘horror’ sites. Diane testified that she thought the police were doing a ‘witch hunt’ on her son.
Writer’s note: Diane gave the hard drive to a ‘then’ friend to keep. Diane paid cash for the new hard drive and did not keep the receipt which could have proved her innocence.

Claims in the habeas address the alleged date on the computer for a search for ‘methanol ’ and ‘methanol poisoning.’ Virginia State Police Special Agent Michael Monroe testified that Diane had done a search for methanol on May 15, 2000. Chuck died in June.

Monroe’s report was admitted without objection. The habeas points out Counsel should have objected to Monroe’s August 15, 2002, visit to these websites. “The evidence is irrelevant and inadmissible. It created an improper inference between the search for ‘methanol poisoning’ on the Internet and the presence of windshield washer fluid in Fleming’s garage. This is true especially in the light of the fact that the prosecution never established that the windshield washer fluid in the garage was the source of the methanol.

Recently, this writer found out that the state’s ‘expert’ should have/could have gotten the actual/correct dates of Diane’s search from the visited websites that store this access information, not from the date (found on the Fleming computer). Even Monroe testified the date shown on the Fleming’s computer could have been wrong. Diane’s defense counsel did not provide an expert to confront this testimony. In his opening statement, defense counsel says "he is going to call a computer expert as a witness." Counsel did not fulfill this promise. No computer witness for the defense testified.

Diane points out that if she had switched out the hard drive two weeks after Chuck’s death, which would have been the end of June, how could the hard drive show a search date for May 15th?

Juror Teresa Reynolds believed that Monroe’s testimony was "compelling." Reynolds further stated, "He didn’t doubt that Monroe was an expert and his testimony affected her decision as to guilt."

Marilee Soltis, juror states in her affidavit: "The fact that the computer indicated that someone searched for ‘methanol poisoning’, in May was very important because Mr. Fleming died in June."

The habeas claims it was permissible to enter into evidence that Diane Fleming passed a polygraph test.

Where a defendant’s credibility is called into question by the commonwealth, the defendant may offer polygraph examination results as long as the defendant does not necessarily invoke the polygraph exam results as proof that he had been truthful. Petitioner asserts that the polygraph exam results should have been offered by trial counsel following the prosecution’s attack on her credibility regarding giving the computer hard-drive to the ‘friend’, Kathleen Curry.

Affidavit of juror Solstis states: I understand that in June 2000 Diane Fleming took a polygraph test administered by the police and was told that she had provided truthful responses regarding this case. In my mind, this would have made her believe that the police were not focusing on her. This information would have affected my determination of Diane Fleming’s credibility, which in turn would have affected my decision on guilt.

Juror Lynch stated: "Had I known, there is a reasonable probability that I would have had a reasonable doubt concerning Diane Fleming’s guilt."

In conclusion, in Diane’s affidavit, she states: "On the day I took the polygraph test, one of the detectives told me that I had passed the polygraph test relating to whether I had knowledge of my husband’s death." Diane adds that: "Not only did they tell me I passed, it says so right in the Police Report. It says ‘The results were truthful’. My son, Chuckie, also took a polygraph test. Chuckie told me that Detective Akers confronted him in an accusatory manner, told him he had failed his polygraph and that Akers knew Chuckie was lying when he denied having knowledge about my husband’s death. Chuckie told me that one of the detectives told him if he pled guilty to ‘product tampering ‘he would likely get six months in jail."

If Diane Fleming’s petition for habeas corpus is accepted and she gets a new trial, the outcome will be different. The Commonwealth can also set Diane free without a trial.

Carol Guilford is a free lance writer based in Los Angeles and can be contacted through her email address at Carolguilford@sbcglobal.com - Guilford is also the author of The New Cook’s Cookbook, The Diet Book, Carol Guilford’s Main Course Cookbook, And The Easiest Cookbook.
Shoshanna Allison contributed to this article.

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